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Tea Leaves and Alpha Bank – UPDATED 11/1

Read this.  JUST. READ. IT.

The article, by Franklin Foer, published on Slate at 5:36 p.m., is titled “Was a Trump Server Communicating With Russia?”

This is big.  So big you’ll get sick of big.

Believe me.

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UPDATE: This is a very long article, and I hadn’t finished it when I posted this.  Now that I’ve finished it, I seems extremely likely to me that this is the information that Harry Reid was referencing in his letter to Comey yesterday.  If so, this is just stunning–that the FBI has withheld this information from the public, yet Comey waited a nanosecond after learning of the emails on Weiner’s computer to announce it to the public even without knowing what they actually were.

Did Comey know last Friday that this news was about to break?  Did that play into his decision to make that information public?

The plot sickens.  In any event, it does seem that the info Reid wanted so badly to become public, now has, as of tonight.  This is the “explosive information” that he was referencing in that letter.  Near the end of the Foer article, he discusses the role that two NYT reporters, Eric Lichtblau an Steven Lee Myers, who also were chasing the story, played in the actual substantive events in September when they made their investigation known to Alpha Bank.  And the Times reporters were in contact with Foer today, right after the Slate article was published. There should be a major story on this in tomorrow’s Times; I would think so, anyway.

But I hope one of these journalists, or another one, asks the computer scientists they’ve been working with if they think there’s a way to determine whether the same crowd that is communicating via the setup described in the article also played  role in the appearance of tens of thousands of Huma Amedin’s personal emails on the hard drive of Weiner’s computer.  And whether that is why Trump suddenly late last summer started claiming that Weiner had access to Abedin’s State Dept. emails.

Tomorrow should be an interesting day.

Added 10/31 at 10:14 p.m.

 

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SECOND UPDATE: Reader Noni Mausa and I just exchanged these comments in the Comments thread this morning:

Noni Mausa / November 1, 2016 10:06 am

I have wondered for some years how long it will be till computer files, images, and emails lose their evidential status, given the expanding abilities of hackers — the digital equivalent of planting drugs or stolen goods in someone’s home is becoming rapidly more plausible.

As for the NYT article, I of course have no firsthand knowledge, (how many of us do? that’s why we have reporters). but the bona fides of the hacker-hunters sound bona fide to me. If messages of some sort were passing between a large Russian bank and Trump’s headquarters, with their frequency responsive to electoral events stateside, at the very least this seems an indication of common interests, whether financial or political. Even if they were “innocently” tied to ordinary financial dealings, this is still of deep concern when the presidency comes into it.

I dare say, since the dedicated mutual traffic on the server on Trump’s end has now gone dark, we will probably not be able to ever know the details of the Trump-Alfa conversation. Stay tuned for another half-dozen conspiracy theories, of which one, the least plausible, will be true, plus at least two major motion pictures.

 

Me / November 1, 2016 10:26 am

Wow. Noni, you raise a really interesting point about the Trump server. Based on all that stuff reported about retrieving stuff from Clinton’s server, I think the FBI COULD retrieve info from that server.

Soooo … if this is the stuff Reid WAS referring to by “explosive information” that the FBI is sitting on, has the FBI sought a search warrant to confiscate the server? If nor, why not? And if the FBI did NOT know of the server–something that seems unlikely, given that at least one of the scientists who provided the info to Foer, the Slate journalist, apparently works as a contractor for the FBI, and given that these scientists have been trying since last June to attract some media attention to their Reddit posts–will the FBI NOW IMMEDIATELY REQUEST A SEARCH WARRANT TO CONFISCATE THE SERVER? AND WILL THE FBI, UM, ANNOUNCE THAT, BEFORE THE ELECTION?

Harry Reid should hold a press conference on this. TODAY.

Updated 11/1 at 11:05 a.m.

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Clarence Thomas confirms his belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly. [His words. Seriously.]

The Supreme Court said Monday that people convicted of domestic abuse can be prevented from owning a gun, in a case that prompted the first questions from Justice Clarence Thomas in 10 years.

In a 6-to-2 decision, the court said Congress had intended to keep firearms out of the hands of domestic abusers.

The question for the court was whether the gun ban applies to those convicted under state law of misdemeanor domestic abuse and specifically whether assault convictions for “reckless” conduct could trigger the prohibition. …

The case decided on Monday was brought by two men, including Stephen Voisine, who was separately being prosecuted for killing a bald eagle. He had a previous conviction for a misdemeanor assault of a woman with whom he had a relationship, and federal prosecutors said that meant he should be banned from owning firearms.

The court rejected that argument, finding Monday that “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally,” according to the majority opinion by Justice Elena Kagan. She was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

To accept the interpretation of the petitioners, the majority said, would risk striking down similar laws in 34 states and the District and allowing “domestic abusers of all mental states to evade” the firearms ban. …

In his dissent Monday, Thomas said the firearms ban should apply only to “intentional acts designed to cause harm” — not to those based on “mere recklessness,” which do not necessarily involve the use of physical force.

“The majority fails to explain why mere recklessness in creating force — as opposed to recklessness in causing harm with intentional force — is sufficient,” he wrote.

Thomas was joined in part in his dissent by Justice Sonia Sotomayor.

Separately, he also objected to the imposition of a lifetime firearms ban based on a misdemeanor assault conviction because of its implications for a person’s Second Amendment rights.

“This decision leaves the right to keep and bear arms up to the discretion of federal, state and local prosecutors,” Thomas wrote. “We treat no other constitutional right so cavalierly.”

Supreme Court: Domestic abusers can be banned from owning firearms, Ann E. Marimow, Washington Post, today

Actually, what Thomas meant by that last sentence is that we treat no other constitutional right so cavalierly that Thomas and his Federalist Society colleagues care about.  Ones that don’t concern gun ownership, or the unfettered freedom to buy elected officials, or to adopt a local or state, or the federal, government as your Christian pulpit.

Y’know; the constitutional rights that matter.  The ones that garner pro bono defense at the Court by some rightwing legal think tank whose name on a certiorari petition means the petition will actually be read by a justice or two, or three, or four.

And the ones whose certiorari petitioner can foot the $1,000 hourly billing fee totaling well into the six figures, to have the name of one of the tiny handful of Washington, D.C.-based Supreme Court “regulars’” name and law firm on the petition cover—the only other way to obtain actual review of your petition by an actual justice if you’re not represented in that petition by a non-government attorney (i.e., a state attorney general).  The petitioners who after paying those attorneys’ fees still have sufficient discretionary income to pay the $8,000 cost for the printing of the certiorari petition as per the extremely weird printing requirements that only three printing companies in the country can do.

Okay, well since the “regulars” get steep discounts at those printing companies, their clients will need considerably less than that full-freight price.  Which must be nice.

In any event, precious few others need apply.  Although nearly 10,000 others a year do.

Thomas’s veritable stock-in-trade is declaring something as fact that is clearly and facially false, often bizarre, sometimes downright comical.  He did that recently in what, happily, was, like this one, a dissent.  Thomas claims this time around that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

Well, maybe.  Then again, it could be that that is just the only one Thomas knows of, since the Court itself has aggressively blocked federal-court review of violations of most constitutional rights involving state and local prosecutors, state courts, and state criminal statutes in the name of state-courts’ rights to violate individuals’ constitutional rights, and since gun-ownership rights are pretty much the only rights that are at issue solely in non-white-collar-crime appeals.  And therefore the only criminal-law-related constitutional rights raised in certiorari petitions that he reads.

Which of course explains this one justice’s belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

There are many thousands of Americans who could disabuse him of that belief.  Some of them have even filed certiorari petitions.

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ADDENDUM: Reader MIJ and I had the following exchange in the Comments thread:

MIJ

June 27, 2016 11:17 pm

Ok, I’m intrigued – not by Thomas who is predictably irrational, but by the way this vote went.
It appears Sotomayor joined the dissent “in part” while Alito abandoned his partner in the summer stock version of “Dumb and Dumber”.

There has to be a story here.

Me

June 28, 2016 10:50 am

Hi, Mark. This actually doesn’t surprise me. Thomas’s dissent is in three parts. The first two parts attack the majority’s claim that recklessness amounts to the “use of physical force” and “violence.” Those wo parts argue, in my opinion correctly, btw, that the terms “use of physical force” and “violence” denote only intentional conduct and therefore preclude recklessness. Thomas notes that even recklessness that causes a traffic accident is not considered “violence.”

The third part, the part that Sotomayer did not join, sings the praises of an absolutist Second Amendment.

The opinion and dissent are here.   (PDF required.)

Alito always—always—sides against the criminal defendant, in criminal cases and habeas cases, with the single exception of cases in which a key aspect (either the conduct of the defendant or the conduct of law enforcement) is something that he can imagine himself being entangled in. The only notable examples are Fourth Amendment cases in which Alito can imagine himself being victimized by an anything-goes nullification of the warrantless-search-and-seizure proscription.

Three or four years ago, Alito wrote an awesome opinion barring law enforcement from sticking a GPS tracker under your car. Alito of course parks his car in his home’s garage and in the Supreme Court’s employee garage, but presumably also, on occasion, in, say, a medical office parking lot or a shopping mall or restaurant one. Scalia, by contrast, apparently didn’t worry about such things; he dissented.

Then, two weeks ago, Alito joined the majority—Thomas dissented—in barring compulsory, warrantless blood tests for suspicion of DUI.  Slate’s Mark Joseph Stern wrote a terrific article there last week about the whiplash Fourth Amendment-cases effect, caused sometimes, as happened last week, when two Fourth Amendment opinions are issued within days of each other, this time first an appalling one, then the DUI one.  It’s here.

As for Sotomayor dissenting, she’s simply not willing to treat anything related to a narrow definition of domestic violence as per se passing muster simply because domestic violence issues are all the rage these days among progressives. Sotomayor, to her credit, in my opinion, recognizes that once you treat recklessness as intent and violence for purposes of domestic violence you probably will be asked to do so for other things as well. There are differences in law, normally, between recklessness and intent (e.g., manslaughter vs. murder), and it’s dangerous to start conflating the two.

Truth be told, I haven’t read the majority’s opinion, and I’m not sure how domestic violence even can be charged, absent intent. But apparently in this case, under a state statute, it was.

Added 6/28 at 11:35 a.m. 

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GAG. (And Paul Krugman is just so, so mystified that so many progressives support Sanders. Be mystified no longer, dear professor.)

Dan Crawford gave me the news this morning before I’d already learned of it. He emailed me with the subject title: “Merrick Garland…here we go!” He linked, without comment, to the NYT article on the announcement.

I responded:

UGH. I guess the idea is that there just aren’t enough super-establishment Supreme Court justices already. We definitely need one more.

And Krugman is just so, so mystified that so many progressives support Sanders.

I WANT TO SCREAM.

Beverly

I’ll post at more length later today; I don’t have time right now.  But at the risk of drawing attention to the attention of the Secret Service, in an unpleasant way, I will take the time right now to say to Obama: Drop dead.*

And I’ll take the time to note this: The title of the NYT article is “Obama Chooses Merrick Garland for the Supreme Court.”  Its subtitle? “Appeals Court Judge Is Respected by G.O.P.”  Well, the G.O.P. that the Washington in-crowd hasn’t noticed isn’t all that popular right now with, um, some of the G.O.P.

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*Na-na-no; this is said facetiouslyThe  drop-dead part, that is. Please, Secret Service. Really.  I don’t like Joe Biden all that much, either.

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UPDATE:  This blog post in Slate by someone named Michael Gerhardt, whom I’d never heard of before and who is not identified there by anything other than his name, makes me cringe.

This guy’s bottom line: Yup, can’t be a merit nominee to the Supreme Court unless you’ve been an intrinsic part of the Centrist Establishment in Washington for, say, several decades.

And interestingly narrow definition of merit, wouldn’t you say?

Okay, well, actually he is identified by more than his name.  He’s a Centrist Establishment person.  Just an educated guess, but still ….

Fittingly, the post title is, “Merrick Garland deserves to be on the Supreme Court.”  Because what matters is what Merrick Garland deserves, not what the multitude millions of people whom the Supreme Court pretends don’t exist.  Or just aren’t worth the time of such an august group.  Or even a moment’s thought.

Then again, there is this hopeful note, also from Slate.  It’s by Jim Newell, Slate’s main political analyst.

Added 3/16 at 6:32 p.m.

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UPDATE TO UPDATE:  Calmer now.  Reread Jim Newell’s awesome article and agree with every word of it.  Including why Obama almost nominated Garland to fill John Paul Stevens’ seat for real. Which pretty much sums up why I can’t stand Obama and don’t want a third Obama term in the person of a chameleon.

Added 3/16 at 7:10 p.m.

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PS: Greg Sargent writes:

I’ll bet that a big part of his selection was that Garland was willing to go through the process knowing he probably won’t get to actually serve on the court, while a younger judge who could have another chance later might not want to.

In thinking about it more, I’m betting that that was a very big part.  As in, none of the others would accept the nomination, and told Obama so.

Repubs apparently now think they can have the last laugh.  Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins.  But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.

This post is starting to feel not like a blog post but like a blog.

Added 3/16 at 8:36 p.m.

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PS TO PS:  Yup.  It’s been officially confirmed by go-to-Centrist Ruth Marcus: Garland resoundingly (her word) deserves to be confirmed, and what really matters is what Garland deserves.

Her piece is titled “A Supreme Court nominee too good for the GOP to ignore.”  I’m not kidding.  That’s its title.  You really have to read this thing.  The whole thing; you don’t want to miss the part about her running into him on the street after she became a well-known Washington Post journalist.  Her piece apparently is not intended as a parody of a Washington insider’s view, although it does double duty as that.

Yup. This post is a blog unto itself.

Added 3/16 at 9:02 p.m.

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Clinton is Running as the Un-Elizabeth Warren. The Tactic is Succeeding. For now. (And btw, what DO those polls on gun-control laws show about rural-vs.-urban-area views?)

Marco Rubio spoke today to a large group of Iowa Republican activists and urged them to “turn the page on outdated leaders of both parties“. They agreed to do that, and started chanting “Feel the Bern.”

Senator, You’re No John Kennedy.  You’re Just Clumsily Appropriating a Campaign Line of His [from his 1946 run for Congress], Me, Nov. 1

Rubio, whose policy proposals entail returning to 1920s economic and regulatory policies (presumably because they worked so well)—and, regarding such matters as antitrust law, returning to the pre-Teddy Roosevelt era—claims that what determines whether a candidate would be an outdated leader is the age of the candidate, not his or her proposed policies.  As I said in the above-referenced post, Rubio is 44 and probably would support a 43-year-old Communist Workers Party candidate if one were to run, and step down himself as a candidate.  Policy proposals being irrelevant to the datedness of the candidate, and all.

Okay.  But he’s actually right about one of the older candidates.  Not about her policy proposals, but about her campaign itself.   Hillary Clinton as a candidate is the un-Elizabeth Warren.  She’s running an absurdly retro campaign that employs asinine allegations of sexism, racism, and Commie-ism against her main primary opponent, Bernie Sanders, as her go-to misdirection tactics to avoid talking about the issues that Warren and Sanders both have made their trademark, their political raison d’être: the thoroughly rigged power game that has so thoroughly rigged the economics game. And the legal game.  [Trust me on this.]

We all know by now about Clinton’s claim, repeated on six occasions within a few days, that all of the 76 members of the National Rifle Association’s Board of Directors are women—er, that Bernie Sanders told her, and only her, to stop speaking in a literally loud voice and that he said this because she is a woman. The initial reaction to Clinton’s claim was a bonanza for her among non-millennial women—that is, women who are of a generation in which being a feminist requires automatic adoption or acceptance of any charge of sexism (or for that matter rape).

Having been a victim of sexual harassment myself, I don’t take lightly the real deals—sexual harassment, sexism, rape. Which may be why it so offends me when a career feminist, which is what Clinton is, cries ‘wolf’ about sexism, knowing its Pavlovian pull among fellow feminists.  Especially career ones. And baby boomer ones, for whom it will always be the 1992 election cycle. As it always will be for her.  But the allegation quickly was shown as false.  As was part of her substantive charge against Sanders in the exchange at the Oct. 13 debate in which Sanders had made the comments that she claimed were sexist: a 2005 statute called the Protection of Lawful Commerce in Arms Act, which she criticized Sanders for supporting and which she as a senator from New York voted against, doesn’t provide what she said it provides.  And the state of liability law at the time, and the state of liability now, that pertains to manufacturers and retailers of products other than guns and ammunition is the opposite of what she claimed.

But not to worry.  Having milked all she could from sexism—she also had claimed that a joke by Sanders’ campaign manager that Clinton would make a fine vice presidential nominee, a standard line that presidential primary candidates use about their nearest competitor, and one that Clinton used about Obama in 2008, was, you guessed it, sexist! —and now being limited to talking about actual gun-control proposals, past and present, she went back to the trumped-up ism well.  (I mean, seriously, good grace; she thought Obama was a woman.  But that was then and this is now.)  She accused Sanders of racism for a comment he made at the debate during, you guessed it, the gun legislation exchange.   William Saletan of Slate, who wrote the most thorough article I’ve read on the sexism smear, wrote in an article yesterday titled “Hillary Clinton Is Stepping Up Her Smear Campaign Against Bernie” by now accusing him of, um, racism!  Seriously.  Saletan reports:

Clinton was in Charleston, South Carolina [on Friday], addressing the local NAACP. She spoke against a tragic background: the massacre of nine black people in a Charleston church by a white racist. Naturally, she talked about guns. But she added a new line: “There are some who say that this [gun violence] is an urban problem. Sometimes what they mean by that is: It’s a black problem. But it’s not. It’s not black, it’s not urban. It’s a deep, profound challenge to who we are.”

The idea that urban is code for black has been around a long time. It’s often true. And it’s not necessarily derogatory: In 1920, the National League on Urban Conditions Among Negroes shortened its name to the National Urban League. But why would Clinton suddenly bring up, in a damning tone, people who call guns an urban problem? Who was she talking about? It can’t be the Republican presidential candidates: They haven’t disagreed enough to debate the issue at that level of granularity. The only recent forum in which guns have been discussed as an urban concern is the forum that inspired Clinton’s initial accusation of sexism: the Oct. 13 Democratic debate in Las Vegas. Pull up the transcript of that debate, search for “urban,” and you’ll see whom Clinton is talking about: Sanders.

Actually, though, Sanders didn’t say that gun violence is an urban problem.  He said that people in rural areas are strongly against gun-control legislation.  Here’s Saletan again:

In fact, [Sanders’ comments are] from the same moments of the debate that Clinton had already seized on. In the debate, Sanders began by saying, “As a senator from a rural state, what I can tell Secretary Clinton [is] that all the shouting in the world is not going to do what I would hope all of us want.” A couple of minutes later, Sanders told former Maryland Gov. Martin O’Malley: “We can raise our voices, but I come from a rural state, and the views on gun control in rural states are different than in urban states, whether we like it or not.” O’Malley insisted that the issue was “not about rural and urban.” Sanders replied: “It’s exactly about rural.” Only one other candidate used the word “urban” during the debate: former Virginia Sen. Jim Webb. A week later, on Oct. 20, Webb quit the campaign. So when Clinton, on Friday, spoke scathingly of people who call guns an “urban problem” but mean it’s a “black problem,” it’s obvious to whom she was referring.

Which is why I’m wondering what the actual poll numbers are on gun-control legislation in, say, Montana, and Maine, and Vermont.  And what the poll numbers are in Illinois, New York, California, and Maryland.  Since hunting is the primary divide, I’m also wondering what the poll numbers are in Michigan’s Upper Penninsula, northern Lower Penninsula, and “Thumb” region (rural; lots and lots of hunters).  And how they compare to southwestern Michigan (urban, suburban).  Because while there is, of course, some cross-over—some urban dwellers oppose gun-control legislation; some rural residents support universal background checks and bans on assault weapons and huge-capacity magazines—it is, very largely, exactly about rural.  Sanders needs to get the poll numbers on this.  And use them.  There aren’t many hunters in Manhattan, Brooklyn, Chicago or San Francisco. There are a lot of hunters in Vermont, Montana and Wyoming.

But he also needs to suggest that Clinton is willing to cheapen the issues of sexism and racism in order to avoid talking about issues concerning the basic power structure in this country and its clear consequences.  And about Republican plans for further, dramatic imbalance.  And about the havoc that the pro-corporate takeover over government beginning more than three decades ago has wreaked on huge swaths of Americans.  In language that does not consist of soundbites and that actually discusses and explains specifics.

I wasn’t kidding when I said Clinton is the un-Elizabeth Warren.  In her campaign tactics at least, Clinton is far more Marco Rubio, Ted Cruz, Jeb Bush, Ben Carson and Donald Trump than she is Elizabeth Warren.  Far more.  Notwithstanding the gender difference.  Swap out the-debate-moderators-are-biased-and-asking-improper-questions for Bernie-Sanders-said-“shouting”-to-me-when-talking-about-women-and-men-who-take-opposing-sides-on-gun-legislation, and Bernie-Sanders-said-“urban”-as-code-for-African-American-criminals!”.  And … voila!

Is it just a coincidence that it’s the candidates, Democrat and Republican, with the zillionaire backers and consequently the army of political consultants, who employ these misdirect tactics?  Just askin’.

But really, isn’t Clinton’s gender-and-race fraud more pernicious than the Republicans’ media/moderator-bias gimmick?

It’s a safe bet that Sanders doesn’t think Warren is shouting.  But then, maybe that’s because it’s Warren and female politicians like her—whose gender is not their defining political identity and who in fact never mention it, but who do discuss intricate fiscal, economic and regulatory issues—who are the actual feminists.

Saletan’s article, which is fairly long, goes on to say this:

This line of attack is rich in irony. When Clinton ran for president in 2008, she explicitly used race against Obama. She told USA Today that she should be the Democratic nominee because “I have a much broader base to build a winning coalition on.” Clinton cited an article that, in her words, showed “how Sen. Obama’s support among working, hard-working Americans, white Americans, is weakening again, and how whites in [Indiana and Pennsylvania] who had not completed college were supporting me.” A reporter asked Clinton whether this argument was racially divisive. “These are the people you have to win if you’re a Democrat,” Clinton replied dismissively. “Everybody knows that.”

Now Clinton accuses others of playing the race card. In Charleston, she told the NAACP, “Some candidates talk in coded racial language about ‘free stuff,’ about ‘takers’ and ‘losers.’ And boy, are they quick to demonize President Obama. This kind of talk has no place in our politics.”

Clinton, too, speaks in code. But in this election, her coded phrases—“some people think we’re shouting,” “some who say that this is an urban problem”—aren’t designed to veil racism. They’re designed to veil her meritless insinuations that her Democratic opponent is sexist and racist. You can argue, based on power or privilege, that playing the race card or sex card from the left isn’t as bad as playing it from the right. But even if you believe that, Clinton’s smears bring discredit on the whole idea of bigotry. If accusations of misogyny and racism are casually thrown at Sanders, voters will conclude that these terms are just rhetoric.

Seven years ago, when Clinton’s own campaign was accused of prejudice, her husband was outraged. “She did not play the race card, but they did,” Bill Clinton said of the Obama campaign. The former president went on: “This is almost like, once you accuse somebody of racism or bigotry or something, the facts become irrelevant.” Three months later, Mr. Clinton was still fuming. “They played the race card on me, and we now know from memos from the campaign and everything that they planned to do it all along,” he protested. “This was used out of context and twisted for political purposes by the Obama campaign to try to breed resentment elsewhere. … You really got to go some to try to portray me as a racist.” Now Hillary Clinton is doing to Sanders what her husband said was done to her. She’s taking Sanders’ remarks out of context and twisting them to breed resentment. You’ve got to twist the facts pretty hard to portray Sanders as a racist or sexist. But politically, it’s easy, because once you start throwing around charges of bigotry, the facts become irrelevant. You’re just another beautiful baiter. And you won’t be silenced.

I remember these incidents well.  I especially remember the “Obama’s support among working, hard-working Americans, white Americans, is weakening again, and how whites in [Indiana and Pennsylvania] who had not completed college were supporting” her” comment, because my jaw dropped when I first heard about it.  And because this is exactly what she’s doing again, with her incessant “hardworking families” cliché, repeated again and again by her on the campaign trail this year.

The difference between the “harworking” dog whistle and Sanders’ comment that the level of support for gun-control legislation is very different in rural areas than it is in urban ones is that tSanders’ comment is accurate and is borne out in the polls. And would be borne out in informal converations between Clinton and people in rural areas, should she take another listening tour, one that doesn’t prescreen attendees and keep unscreened folks on the other side of a rope line.

Clinton reaped a poll bonanza from her debate and her Benghazi-hearing media successes.  But only among Democrats.  Her ratings on honesty and trustworthiness, and her general favorability, rose substantially among Democrats, but remained about the same among the public overall.  Which means that among non-Democrats, her ratings decreased.

Which may in turn mean that Democrats who now support her because they think, in light of those performances, that she would be the stronger candidate in the general election may begin to waver.  And others may catch on that there’s a reason why she wants to talk about anything other than what progressive Democrats and many others want most to hear about.

The Saletan article mentions the uber outrage at Sanders that some prominent feminists have expressed as his employing of–gasp!–gender stereotyping about women shouting, and their equally rote outrage at Sanders’ campaign manager, Jeff Weaver, for suggesting that a woman could qualify for vice president but not for, y’know, the actual head of the federal government.

Yup. Good ole Bernie Sanders never would have supported a presidential primary run by Elizabeth Warren, and not run himself, had Warren decided to run.  Uh-uh.  No, Ma’am. No how.  And no way.

Two of the three women have made careers out Feminism, and one of them has never met a sexism or rape allegation that she thought just possibly could be false.  Or, regarding sexism, ridiculous. But really, how many millennial women think it’s a good idea for the first woman who has a real chance to be elected president to engage some sort of word game, trolling for a word or phrase whose meaning, alone or in the context in which it was used, could be tortured to suggest gender stereotyping?  Marco Rubio is right about Hillary Clinton.  And in her instance it does appear to be age-related.  She’s running a ridiculously retro campaign.  And only partly to regain the support of women.  Mostly, to reiterate, it’s in order to avoid addressing the economics-related issues that Sanders, and Warren, raise.

Gun violence is a tremendously important issue.  But it is not the only tremendously important issue. It’s just the only tremendously important issue that seems to offer opportunities for false sexism and racism allegations against Bernie Sanders.

And therefore opportunities to then, in the light of day, reveal Clinton for who she really is after all.

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Making a Difference in American Families’ Lives by Crying ‘Wolf’ about Sexism

“Her campaign has been about how to make a difference in American families’ lives – a cause she’s fought for her entire life,” said [Clinton campaign] spokeswoman, Christina Reynolds. “It’s a shame Senator Sanders’s campaign has decided to make the campaign about political attacks. Voters want to hear about how their candidate will fight for them, not fight each other.”

Bernie Sanders Walking the Line Between Personal Attacks and Political Critiques, Patrick Healy and Maggie Haberman, New York Times, today

Absolutely, Clinton’s campaign has been about how to make a difference in American families’ lives, and voters want to hear about how their candidate will fight for them, not fight each other.  Which is why Clinton three times within two days publicly told those very voters and all the world that Sanders told her, and her alone, that she should stop speaking in a literally loud voice about the issue of gun control legislation, and that he did so because she is a woman and he is sexist.

This will make a difference in American families’ lives.  At least the lives of hardworking ones.

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Some lesser-known pundits are not falling in line, it now appears

[Sanders’s] most newsworthy moment, of course, came when he declined Cooper’s invitation to attack Clinton for using a private email server. “[L]et me say something that may not be great politics,” he said. “But I think the secretary is right, and that is that the American people are sick and tired of hearing about your damn emails.”

Sanders was wrong: It was great politics. His statement made him look like a mensch and a man of principle, ensuring that the debate remained a surprisingly substantive exchange on the issues he cares about most, rather a GOP-style pro-wrestling match. He actually seemed less interested in taking down the front-runner than in elevating his own ideas. That’s hugely rare in a politician.

Yes, Hillary Clinton Won the Debate …But Bernie Sanders set the terms, Michelle Goldberg, Slate, today

As with this matter, the punditry’s reaction to the above moment last night was, um, different than mine.  After spending most of the first hour of the debate disappointed in Sanders’s performance—he seemed very, very nervous, and occasionally almost tongue-tied—I reacted to that comment by him with a “Wow! Yeah!  He’s found his sea legs!”

My question today is: Why is this interpreted by the political analysts as a big victory moment for Clinton rather than for Sanders?  Is this how most of the viewing public saw it?

I’m betting that answer is that they saw it as I did.  And as this one journalist, Michelle Goldberg, saw it.  As a victory for the Democratic Party.  And a triumphant moment for Sanders.

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Denmark isn’t a middle-class, capitalist, entrepreneurial country? Because it has universal healthcare, free college, subsidized day care, and guaranteed family and medical leave? Really, Secretary Clinton? Really?

We are not Denmark — I love Denmark — we are the United States of America.  We would be making a grave mistake to turn our backs on what built the greatest middle class in the history of the world.

— Hillary Clinton, last night

Okay.  When I heard that, I said, “Wow.  Did she just say that Denmark isn’t a middle-class, capitalist, entrepreneurial country?  And that that’s because it has universal healthcare, free college, subsidized day care, and guaranteed family and medical leave?

That struck me as a major gaffe.  She is, after all, running for the Democratic Party’s nomination for president, not the Republican Party’s.

Sanders didn’t respond to it because, if I remember right, he didn’t have the chance.  But I expected the political analysts to point this out afterward.

Silly me.  It’s being hailed as a big moment for Clinton.  By most commentators I’ve read, anyway.  But not by Slate’s Jordan Weissmann, who wrote last night:

The odd thing here is that, despite his preferred nomenclature, Bernie Sanders isn’t really all that much of a socialist. Yes, the man is certainly on the left edge of mainstream American politics. He would like to raise taxes significantly on the wealthy, to spend more on infrastructure, to break up large Wall Street banks. He’d like to make public colleges tuition-free, but he isn’t pushing to eliminate private universities. Fundamentally, the man isn’t really running on an anti-capitalist platform of nationalizing private industry. The one exception, you could argue, would be his stance in favor of single-payer health care—that would amount to a government takeover of health insurance. But that would also basically bring the U.S. in league with decidedly capitalist nations such as Canada and Great Britain.

In the end, left writer Jesse Meyerson, himself a bona fide socialist, put is most simplyin Rolling Stone: “For now, the proposals at the core of his platform—for the most part very good—are standard fare for progressive Democrats.” That comment was from July but still holds.

Which brings us to the Northern Europe comparison. Typically, policy types refer to Scandinavia’s “social democracies,” because of the robust social safety nets in countries such as Norway, Sweden, and, yes, Denmark. But it’s not as if these places are antagonistic toward capitalism and business—by some measures, they’re about as entrepreneurial and innovative as the United States (at least if you adjust for the size of their economies). Saying we shouldn’t emulate Denmark because we want to preserve America’s spirit of industriousness, as Clinton suggests, is a bit strange.

I clicked the “by some measures” link, which is to an October 2012 article by Weissmann in The Atlantic titled “Think We’re the Most Entrepreneurial Country In the World? Not So Fast.”  It’s subtitled “We’re the venture-capital capital of the world, but start-ups and young small businesses play a smaller role in America’s economy than in many other rich nations.”  A key paragraph says:

Some of the most cutting-edge young companies in the world call Silicon Valley, New York, Boston, and Austin, Texas home, partly because we have the financial backers to support them. According to the OECD, the U.S. ranks second overall in venture capital invested as a percentage of GDP, which wedges us between Israel at No. 1 and Sweden at No. 3. In sheer dollars, we dwarf everyone. That said, it’s not clear all that money floating around makes our start-ups much more creative. The OECD ranks us ninth out of 22 for the number of start-ups younger than five years old that issue patents, adjusted for the size of our economy (Denmark leads on that measure).

Weissmann’s right that Sanders isn’t really that much of a socialist.  And if that statement by Clinton is an indication—and I think it is—Clinton isn’t really that much of a progressive.  Or even that much of a Democrat.

Sanders now has the funds to start running internet and even television.  I suggest to his campaign, should anyone from it happen upon this post, that the first ad they run shows a clip of Clinton saying what I quoted her above as saying, and juxtaposing it with the statistics that Weissmann cites in that Atlantic article, and a few statistics about Denmark’s standard of living.

If Clinton believes that venture capital for innovative startups, and bank loans for ordinary small businesses, will dry up if we have universal healthcare, free college, subsidized day care, and guaranteed family and medical leave, then she should maybe actually look into it a bit.  Maybe she should even visit Denmark, which apparently on her trip there in which she came to love it didn’t notice that most of its residents weren’t living in poverty and didn’t realize that most of its businesses, large, small, and midsized, weren’t owned by the government. While she’s in the neighborhood, she also could visit Sweden and Norway.  And if she can spare the time, even Germany.

But if she can’t fit a trip overseas into her schedule, well, Canada is just north of her home state of New York.  She could even do a day trip there.

****

I mean it, Sanders campaign.  Run ads of the sort I’ve suggested.  Soon.

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Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

— In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine.  I’m glad. Even despite the immediate repercussions for EPA authority., Me, Jun. 25

Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday.  As expected, both were 5-4 opinions with Kennedy as the swing vote.

Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act.  This is a big, big win for power plants and the Koch brothers.

But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case.  Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom.  The full provision in the Constitution’s Article I, Section 4, Clause 1, states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.

What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all.  And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”.  I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.

But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t.  I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.

Well, we’ll have to see what the experts say about that.  Sit tight.  But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal.  I think.

Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.

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UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at electionlawblog.org), just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring.  Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.  Cool.

Added 6/29 at 3:42 p.m.

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SECOND UPDATE:  Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”

The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.

Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles.   This is just a  big win for coal-powered power plants, not a big, big win for them.  The Koch brothers are still pretty happy tonight, though.

Added 6/29 at 9:40 p.m.

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Shaken, Not Stirred: The Supreme neo-Framers (likely) will continue their perversion of the First Amendment speech clause tomorrow.

In an email this morning, Bill H asked me whether I know much about a case called Harris v. Quinn, in which the Supreme Court will announce the likely 5-4 majority’s ruling tomorrow.  I responded:

I know LOADS about it, Bill, and wrote about it–and about a bizarre comment by Alito during the argument on the case–right after the argument back in Jan. and have mentioned it two or three times since then.  It is really striking that the Supreme Court agreed to hear the case in order to consider the claim: that requiring public employees to pay a fee (not the full union dues, but instead some small percentage of the membership dues as compensation for the union’s legal obligations by which employees who opt out of membership nonetheless gain the benefits of the union contract (pay, benefits, job protections), violates the employee’s First Amendment speech rights.

But what’s downright stunning is that at the argument, Alito said he believed that the very existence of public-employee unions violates the First Amendment because–seriously; he said this–the non-member union-contract beneficiary might want small government.  This, from someone whose first official act as a justice was to join Kennedy (the opinion’s author), Scalia, Thomas and Roberts in ruling that a district attorney did not violate an assistant district attorney’s First Amendment speech rights by retaliating against him for writing an internal memo saying that he believed that a cop had falsified some evidence in obtaining a search warrant.  That opinion, in a case called Garcetti v. Ceballos, was and remains extremely controversial–it was shocking, really–and played a key role in a case, called Lane v. Franks, that the Court decided two weeks ago.

I suggested in my posts about Harris and about that comment by Alito’s during the argument that the non-union beneficiary of a public-employee union contract had the option of quitting his job or refusing the negotiated benefits in order to reduce the size of government.

I had predicted from the outset that the opinion in Harris would be issued on the same as the opinion in Hobby Lobby, so that news coverage of Hobby Lobby would overwhelm coverage of Harris, and I was right. Because of the way in which the Court divvies up majority-opinion-writing among the justices, it is clear that Alito was assigned to write the opinion in Harris.

There is a (very) outside chance that one justice changed his mind since the week of the argument (when the vote was taken and the majority-opinion-writing was assigned), and that someone other than Alito therefore is writing a 5-4 opinion rejecting the outrageous First Amendment claim.  Something sort of like that happened in a case called Bond v. US, argued last Oct. and decided [on Jun. 2], a case that they planned to use to advance their states’-rights juggernaut but instead ended up making an important statement about abuse of prosecutorial discretion–a ground on which they never, ever, would have even considered agreeing to hear the case (okay, maybe they would have, but only because the prosecutor was a federal one, not a state one; but even so, probably not).  In that case the actual outcome didn’t change, nor did the author of the opinion (Roberts), but the basis for the ruling, and the statement of law, changed significantly.

I call Bond the Stirred, Not Shaken opinion.  I have a theory about the reason for Roberts’ late change of heart, and I’ve been intending to post in-depth about it but haven’t yet.

I do expect an outrageous 5-4 opinion by Alito in Harris, though.

Yes, the undermining of public-employee unions–like state-courts’ rights to baldly violate individuals’ non-gun-ownership, non-religious, non-real-estate-regulation-er-takings constitutional rights, and to supersede Congress’s Fourteenth and Fifteenth Amendment powers to buttress, say, individuals’ voting rights–is definitely on the List of Circa 1983 Movement Conservative Legislation-via-Supreme-Court-Pronouncement THINGS TO GET DONE.

And done, these things will get. Now that the chief justice has expressly conceded that their end game has been all along a Court-mandated plutocracy in which legislators’ constituents are those who pay to become one, irrespective of any connection between the location of the constituent/benefactor’s voting residence and the legislator/beneficiary’s legislative district–now that these five justices have used the First Amendment speech clause to formally institute a poll tax, and redefined the term “constituent,” and therefore “democracy,” beyond former recognition*–it’s time for them to get back to other uses of the newly reconstructed First Amendment speech clause.  In the name of the Framers.

The original ones, of course!

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*In his Apr. 2 opinion in McCutcheon v. FEC, Roberts redefined “constituent” as an American who, irrespective of place of residence, donates to a political campaigns in sufficient amounts to buy the candidate or incumbent’s proxy vote on legislation, and “democracy” as plutocracy.  The specific statement is:

[C]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon­sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.

Ergo–voila! It’s official; we have a plutocracy.

Just in case you were wondering.

[Clarification added 6/29 at 5:08 p.m.]

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